WASHINGTON, Sept. 22 -- The Supreme Court is poised to begin its new term on the First Monday in October with a healthy number of important cases stuck in its bin, but no issue in any of the cases is more important than what to do about Microsoft.
The nine justices are faced with the question of whether to take the Microsoft appeal directly under the terms of the federal Expediting Act, or bounce it back for argument in an intermediate appeals court. The question, which the justices might answer as early as Tuesday, is more than technical and could have a direct effect on the final outcome of the case.
After a landmark federal antitrust trial earlier this year, U.S. Judge Thomas Penfield Jackson ruled that the software giant must be snapped in two. One of the resulting companies would contain the company's popular Windows operating system, the other all other Microsoft applications. Each would have to compete with the other.
Jackson also issued a number of orders to curb Microsoft's aggressive -- critics call them bullying -- business tactics.
The Justice Department and 19 states alleged, among other things, that Microsoft had used its ubiquitous Windows operating system as leverage to enforce its will in other software markets.
For example, Microsoft integrated its Web browser, Internet Explorer, into Windows. The company called it simply an "improvement" to an existing product. The Justice Department said it was an attempt to force the users of one Microsoft product, Windows, to also use another company product, Internet Explorer, to the detriment of rivals such as Netscape.
Since Windows is installed on nine out of 10 personal computers before they reach the consumer, the department argued, Microsoft was trying to extend its considerable power in the operating system marketplace to the Web browser marketplace.
Though Jackson agreed, he stayed his ruling until Microsoft completes the appeals process.
The Justice Department wants to take the case directly to the Supreme Court. Microsoft, on the other hand, is asking the justices to let an intermediate appeals court in Washington hear the case first, contending that there are too many factual issues to be ironed out before the dispute reaches the highest court in the land. In essence, the company is telling the justices that if they take the case directly, they will have a lot more work to do than if they let the appeals court have a first crack.
That's probably not a bad argument to make to a Supreme Court that has let its caseload dwindle from around 150 per term in the 1980s to around 75 in recent years.
Microsoft also likes its chances along the appeals court route because the intermediate court has reversed Jackson in earlier incarnations of the case -- the Justice Department tried for an injunction against the company before it filed the antitrust case -- and it would lengthen the appeals process by as much as a year. Jackson's ruling does not become effective until that process is complete.
For its part, the Justice Department wants to finish the case as quickly as possible so Jackson's ruling can go into effect. It also feels it will get a better deal if the Supreme Court decides the facts of the case -- something the high courtdoes not do in most cases. When not hearing the rare direct appeal, the justices normally accept the facts as they are decided in the lower courts, and rule only on constitutionality and precedent in a particular case.
As part of its argument, the Justice Department cites the Expediting Act, which allows either side in a major antitrust case to ask the trial judge to "certify" the appeal directly to the Supreme Court when it is in the public's interest.
Jackson has done so, and it's now up to the Supreme Court to decide whether to accept it. The justices could announce a decision when they start to issue orders next week prior to beginning the new term on Oct. 2.
An interesting sidelight of the case is how many votes it would take from the nine-member court to agree to hear the appeal directly, since the Expediting Act doesn't specify the process, and the Supreme Court is not commenting. The best guess from the Supreme Court pressroom: Four votes, the same number it takes to agree to hear argument when reviewing a lower-court decision.
Another major case this term -- rivaling Microsoft in importance -- deals with the power of the Environmental Protection Agency. On Nov. 7, the Supreme Court will hear argument on whether a Clean Air Act provision allowing the EPA to set particulate levels in the air is an unconstitutional delegation of congressional authority, and a separate argument on whether the EPA must consider the cost to corporations in setting clean air standards.
In a high profile case out of South Carolina, Ferguson vs. Charleston, the court will hear argument Oct. 4 on whether state hospitals can test expectant mothers for crack cocaine, protecting their health and the health of their fetuses but endangering the mothers' custody of their babies. Also on Oct. 4, the justices will hear argument in a case out of New York City on whether federal law can keep Legal Services Corp. lawyers, paid with public money to represent indigent clients, from challenging federal welfare reform in court.
Argument Oct. 11 in University of Alabama vs. Garrett will eventually determine whether states and their agencies are immune from private lawsuits for violations of the Americans with Disabilities Act.
On Oct. 3 the justices hear argument in Indianapolis vs. Edmond on whether police can set up roadblocks to find drugs, even if there is no probable cause to believe they are present. On Dec. 4, the justices will hear argument in Atwater vs. City of Lago Vista (Texas) on whether the Fourth Amendment allows police to take someone into custody for offenses that would only bring a fine, not jail, upon conviction
For sports fans, or those who simply like to shake their heads over the pervasiveness of sports in U.S. society, the Supreme Court hears argument Oct. 11 in Brentwood Academy vs. Tennessee Secondary School Athletic Association.
The association sanctioned Brentwood, a high school football power in Tennessee, for appearing to recruit eighth-grade athletes. The school sued the association, saying the organization was trying to build a "Berlin Wall" around husky middle school students, preventing them from hearing about the fine football program at Brentwood.
Government, or an agent of the government, cannot violate the First Amendment's guarantee on free speech. The Supreme Court argument will center on whether the association is a "state actor" that can be held accountable in court for hindering free speech.
